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Assisting couples with property division during divorce in New York
New York is an equitable distribution state when it comes to divorce. This means that marital property and assets are divided in a way that is fair to both sides, which is not necessarily a 50/50 split. When making decisions about which spouse gets which assets, the court considers a variety of factors, including each spouse’s contributions to the marriage; a party’s separate property, income, and earning potential; and more. Equitable distribution of assets, particularly in cases where spouses have high net worth, can be extremely complicated, and requires a financially sophisticated and legally knowledgeable attorney.
The Westchester divorce attorneys at Berkman Bottger Newman & Schein LLP have decades of experience handling the complex issues involved with property and asset division. Our legal team can work to ensure you secure your fair share of the marital property and hold on to your personal assets. We fight to achieve your goals and get the best results possible. Contact us today.
What is the difference between marital and separate property?
Only marital property and assets are eligible for distribution. Separate property remains with each spouse.
Examples of marital property include:
- Bank accounts, cash, stocks, retirement accounts or pensions you and your spouse acquired during your marriage
- Real property purchased or acquired during the marriage, unless one spouse paid for that property with their own separate funds
- Businesses started during a marriage
- Property like cars, boats, artwork, furniture, or jewelry that you and your spouse purchased during your marriage
Examples of separate property include:
- Any compensation awarded for personal injury claims during your marriage
- Any property defined as separate property in a prenuptial or postnuptial agreement
- Personal property (like cars, artwork, or jewelry) that you acquired or purchased before the marriage
- Property acquired via gift or inheritance (from someone other than your spouse) during your marriage
- Real property purchased or acquired before the marriage
- Bank accounts and other cash assets obtained before a marriage that are not comingled with marital assets
When you and your spouse make the decision to divorce, you are free to decide on matters of property division on your own. However, if you cannot agree on the terms, or are in dispute over certain items, you may need to look to the courts for a fair decision. The attorneys at Berkman Bottger Newman & Schein LLP can help advocate for your best interests.
How does the Westchester divorce court divide marital property?
The New York courts take 13 factors into account when making decisions about equitable distribution of property and assets:
- The income and property of each spouse at the time of the marriage, and at the time of the divorce;
- The length of the marriage and the age and health of both spouses;
- If there are minor children involved, the need of the spouse who has custody of the children to live in the marital residence and to use or own its household contents;
- The loss of inheritance and pension rights of each spouse because of the divorce;
- The loss of health insurance benefits of each spouse because of the divorce;
- Any award of support or maintenance the court will be making;
- Whether one spouse made contributions to marital property that the spouse does not have title to – for example, where one spouse helps the other spouse start a business;
- The liquid or non-liquid character of all marital property (“liquid” means that the property can easily be converted to cash);
- The probable future financial circumstances of each party;
- The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business so it can be run without interference by the other spouse;
- The tax consequences to each party;
- Whether either spouse has wasted or used up any of the marital property while the divorce was ongoing; and
- Whether either spouse transferred or disposed of marital property at less than market value, knowing that the divorce would be happening.
In 2021, New York State added an additional factor courts may consider: whether domestic violence was present during a marriage.
The court also has the discretion to take other factors and circumstances into account.
Does a business count as marital property?
Businesses and professional practices are considered property by the court, which means they are eligible for equitable distribution. Realistically, however, it is impractical to “divide” a business. In situations like these, the court typically tries to ascertain a business’s value, and determines a cash distribution based on that value.
The court may award the business to the spouse who operates it day-to-day and award the other spouse more property and assets to make up the difference. This is just one of many possible solutions.
Is marital debt subject to property division in Westchester?
Yes. Marital property also includes marital debt. Examples of marital debt are any debts either spouse accrued during the marriage. This could be anything from a line of credit at Home Depot to a mortgage to financing a family vehicle. Separate debt, on the other hand, stays with the spouse who accrued it. If one spouse has debt from a large purchase before the marriage, it will not count toward the marital debt.
When dividing marital debt, the court considers a variety of factors, including:
- Amount of the debt
- Why and how the debt was acquired
- Which spouse benefited most from the debt
- Which spouse is most capable of paying off the debt
Our experienced property division attorneys can examine your and your spouse’s financial situation and provide informed guidance on your next steps.
If my spouse committed adultery, am I entitled to more assets?
No, the issues leading to a divorce are not usually affected by any fault grounds. However, if a spouse intentionally and purposefully wastes marital assets, the court may take that into consideration against them.
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At Berkman Bottger Newman & Schein LLP, our divorce attorneys guide clients through the process from start to finish. Property and asset distribution is a complex matter, and we can advocate for your best interests and ensure you are treated fairly. Schedule a consultation today by calling us at (212) 466-6015 or contacting us online. We have offices in White Plains for your convenience.